George Will

WASHINGTON -- There should be two Supreme Courts, one to reverse the 9th U.S. Circuit Court of Appeals, the other to hear all other cases. Last term, more of the Supreme Court's caseload -- 18 of 82 cases (22 percent) -- came from the liberal 9th Circuit, based in San Francisco, than from any other circuit, and the 9th was reversed in 15 of the 18. The 9th's winning percentage (.167) was worse than that of the 1962 Mets (.250). On Monday, in the first decision of this term, the Supreme Court reversed the 9th's fretfulness on behalf of Fernando Belmontes.

In order, as he explained to one of his accomplices, to ``take out a witness,'' Belmontes used perhaps 20 blows with a metal dumbbell bar to bludgeon to death Steacy McConnell, whose home he had entered for a burglary. He emerged drenched with her blood and carrying her stereo that he sold for $100. She was 19. Belmontes killed her 25 years ago.

How did capital punishment jurisprudence reach its current baroque condition, in which cases live longer than did the murder victims? At the hands of judges such as Stephen Reinhardt, a residue of Jimmy Carter's presidency, who says Belmontes' ``robbery gone wrong'' lacked ``especially heinous elements.''

Belmontes was convicted of murder ``with special circumstances,'' making him eligible for the death penalty. In the trial's penalty phase, the jury heard about his previous crimes, which included severely beating his pregnant girlfriend a month before murdering McConnell. Belmontes argued that he had an abusive and alcoholic father and had become a Christian (before beating his girlfriend). He also stressed -- this is called a ``forward-looking mitigation'' -- that he had been well-behaved in a previous incarceration and would contribute to society if sentenced to life in a prison's structured environment.

Belmontes' attorney asked the trial judge to specifically instruct the jury to consider Belmontes' ability to live acceptably in prison. Instead, the judge used California's ``catchall mitigation instruction,'' which was declared constitutional in 1990. It tells a jury weighing capital punishment that it can consider many things (e.g., the use of force or violence, the defendant's age, any extreme mental or emotional disturbance, prior felony convictions). Belmontes' case turned on whether the jury understood one provision of the catchall instruction -- to consider ``any other circumstance which extenuates the gravity of the crime'' -- to include the ``forward-looking'' consideration that life imprisonment might be a suitable punishment.


George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
 
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